Can video iPod lead to DMCA reform?

The Digital Millennium Copyright Act needs some serious repairs. CNET News.com's Declan McCullagh wonders whether the video iPod will do the trick.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
Apple Computer's video iPod may not be the first portable movie player, but it is by far the best.

The one serious flaw in this svelte little device is how difficult it is to load with video. Apple's otherwise handy iTunes application flatly refuses to transfer a legally purchased DVD to the iPod.

Don't blame Apple for this glaring oversight. You can thank our esteemed public servants in Congress.

In 1998, politicians bowed to pressure from the entertainment industry and voted overwhelmingly for the Digital Millennium Copyright Act. Part of that law made it a federal offense to sell or distribute software that can rip DVDs.

In other words, believe it or not, Apple CEO Steve Jobs would be guilty of a federal felony if iTunes transferred DVDs to an iPod as easily as it can music from a CD.

While these Draconian penalties have angered digital-rights types for years, the prohibition really hasn't affected a broader audience. But the recently released video iPod changes this and--if we're lucky--will prove to be a flashpoint that sparks actual reforms.

"Our best hope for getting amendments to the DMCA is for more regular consumers to feel the pinch of the DMCA," says Fred von Lohmann, an attorney at the Electronic Frontier Foundation.

Earlier legal tussles over the DMCA were more arcane and didn't cripple gadgets prized by millions of Americans. (About 14 million iPods, including the Shuffle, Nano and video versions, were sold in the last quarter of 2005.)

Take the court rulings against the now-defunct 321 Studios, which used to sell a DVD-copying program. A federal judge in February 2004 ruled that the DMCA outlawed it.

That decision was widely ignored outside of geekdom. So were legal threats against security researchers, DVD burning software, toner cartridge refills, computer-science graduate students, Russian hackers and Princeton researchers.

DMCA celebration border=
Credit: Declan McCullagh
Champagne was on hand in 2002
when politicians and lobbyists
gathered in Washington, D.C.,
to celebrate the Digital
Millennium Copyright Act.

There are some proposals in Congress that start to fix the video iPod problem, but the outlook is hardly sunny.

One bill is the Digital Media Consumers' Rights Act, introduced by Rep. Rick Boucher, a Virginia Democrat. Another is the so-called "Balance" bill introduced by Rep. Zoe Lofgren, a California Democrat.

But there are some problems. The latest version of the Boucher bill seems to be watered down from an earlier one. (The new language is ambiguous but not as consumer-friendly as it was in the earlier version). And even if it were enacted, you could legally transfer a DVD to an iPod, but it would continue to be unlawful to distribute the software that permits the transfer to take place.

The Lofgren bill comes closer to the mark. It says that in some cases, it is legal to distribute software that can "circumvent a technological measure" such as DVD encryption.

Unfortunately, her proposal has virtually no support. And because it's a bill introduced by a Democrat, it's hardly likely to receive a warm welcome from congressional Republicans.

More to the point, perhaps, a good portion of the U.S. technology industry is lined up against DMCA reform.

There's no shortage of enthusiasm for the 1998 law among the political class--various lobbyists and politicos actually toasted it with champagne a few years ago, and many software companies love it.

The Business Software Alliance (that is, Microsoft) says the law is necessary "to curb piracy and its economic consequences." The entertainment industry is just as emphatic, and so are video-game makers.

Still, some glimmers of hope exist for DMCA reform. At a hearing in November, Rep. Joe Barton, the Texas Republican who chairs the House Energy and Commerce Committee, seemed to take a common-sense approach.

"It boils down to this: I believe that when I buy a music album or movie DVD, it should be mine once I leave the store," Barton said.

Hardware makers and Internet providers have also expressed their support for reform. (The list includes Intel, Sun Microsystems, Verizon, Gateway and Red Hat.)

Will that be enough? We'll see. It may depend on how rebellious--or cranky--video iPod owners turn out to be.